Ananda Marga Education Ltd Trading AS The River School

[2025] FWCA 1311

[2025] FWCA 1311

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ananda Marga Education Ltd Trading AS The River School

(AG2025/836)

THE RIVER SCHOOL COLLECTIVE ENTERPRISE AGREEMENT 2024

Educational services
DEPUTY PRESIDENT DOBSON	BRISBANE, 28 APRIL 2025

Application for approval of The River School Collective Enterprise Agreement 2024

1. This decision deals with an application made for approval of an enterprise agreement known as the The River School Collective Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ananda Marga Education Ltd T/A The River School (the Applicant). The Agreement is a single enterprise agreement.

Notice of Employee Representational Rights

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to be the pre-June 2023 version. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

Reasonable Foreseeability

1. Correspondence was sent to the Employer by my Chambers on 4 April 2025 raising a number of concerns including that the Agreement:

·   Is silent in respect of weekend penalties for Gardeners;

·   Provides inferior annual leave loading for shiftworkers; and

·   Is silent in respect of sleepover, on call, recall, tool, protective clothing and uniform allowances for General Staff.

1. The Applicant responded on 8 April 2025 advising that:

·   Gardeners are never required to work on a weekend;

·   The school does not employ any shiftworkers; and

·   General Staff are not required to sleepover, work on call or be recalled to duty. Further they are provided with all required tools and protective clothing and are not required to wear a uniform.

1. I am consequently satisfied that per s. 193A(6A) of the Act the circumstances for which these matters may be a detriment are not reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test. I note that should this change that pursuant to s.227A of the Act, application may be made for the future reconsideration of whether the agreement passes the BOOT during the life of the Agreement.

Obvious errors, defects or irregularities

1. The Commission noted that the Agreement appears to contain an incorrect reference to another clause at S4.13. When raised with the Applicant, the Applicant contended that the incorrect reference arose when drafting the clause on the basis of the relevant Award term and provided the correct reference. Further, the Applicant also contends that there is a second error in the Wage Schedule for the Office staff and provided an amendment that results in those employees affected being paid a high rate of pay. The Applicant asserts both of those are obvious errors, defects or irregularities. The Applicant has provided an updated copy of the Agreement which corrected these errors. I am satisfied that these issues each constitute an obvious error, defect, or irregularity and I will amend the Agreement accordingly pursuant to s.218A of the Act.

1. The Agreement contains a term at clause 4.5 that deals with deductions for overpayment from an employee’s fortnightly wage. I note that where such a deduction does not comply with s.324 of the Act, it may be unenforceable.

Undertakings

1. The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Coverage

1. The Independent Education Union of Australia Queensland and Northern Territory Branch (IEUQNT) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the IEUQNT.

Approval

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 December 2027.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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